Former Hong Kong law professor Benny Tai, a key figure in a landmark national security case involving 47 democrats, should receive a two-year jail sentence for taking part in a conspiracy to commit subversion, his lawyer has argued as the mitigation hearings of those who pleaded guilty or were convicted began.
The former University of Hong Kong (HKU) professor had an “honest but mistaken” belief that his plan of securing majority control in the legislature was legal, Senior Counsel Stewart Wong told a panel of three handpicked national security judges on Tuesday.
At the centre of the case is an unofficial primary poll held in July 2020, which aimed to help the opposition camp win majority control of the legislature in an upcoming election. Prosecutors said during trial that the conspiracy was initiated and promoted by Tai, who was among 31 defendants to plead guilty.
Winning majority control in the legislature was one of “Ten steps to mutual destruction” proposed by Tai. The prosecution argued that the defendants intended to abuse their legislative powers to indiscriminately veto bills, forcing the chief executive’s resignation and a government shutdown.
The remaining 16 democrats stood trial for 118 days, with 14 convicted and two acquitted of the charge last month.
Tuesday marked the first mitigation hearing for the convicted defendants. The court reserved three days for Tai, Au Nok-hin, Andrew Chiu, Ben Chung and Gordon Ng, who were identified as organisers of the scheme, to present issues related to mitigation.
The remaining defendants will appear in court in small groups in the coming weeks for mitigation.
3-tier penalty
Lead prosecutor Jonathan Man told the court on Tuesday that although the defendants were convicted of taking part in the same conspiracy, different sentences should be imposed based on their level of participation.
Under the Beijing-imposed national security law, those found guilty of a subversion offence face three tiers of penalty.
A principal offender or a person who commits an offence of a grave nature faces up to life in prison. An active participant in the offence is subject to a jail sentence between three and five years. Other participants face a “fixed term imprisonment of not more than three years, short-term detention or restriction.”
Judge Alex Lee asked if the principal offenders in the case were those who would be elected as legislators and would vote against the budget, rather than the organisers of the primary poll. The prosecutor disagreed.
“It is quite unacceptable to say that an organiser of the crime is not a principal offender… [it] defies common sense,” Man said.
Judge Andrew Chan asked the prosecutor to indicate which defendants were principal offenders and who were active participants and other participants. Man said it was a “difficult” question for him to answer.
Chan went on to say that the prosecution must have a position on the matter, adding the prosecutors would “jump up” and file an appeal immediately if the court were to sentence Tai as “other participants.”
Following a morning recess, Man said the prosecution would define a principal offender as someone was involved in the planning or directing of the scheme. The court should also consider if they were involved in enhancing the degree of participation, or facilitated the scheme, the prosecutor said, adding that it was not an exhaustive list.
For a defendant to be considered as an active participant, it would depend on whether they played an active role, and how eager they had taken part in the scheme. The remaining defendants would be seen as the third and least serious tier, Man said.
The prosecutor also suggested that the four accomplice witnesses who testified against their fellow democrats could be seen as giving assistance to the authorities. It could be considered as a mitigating factor in accordance with Article 33 of the national security law, Man said.
‘Audacious’
In his mitigation plea, Wong argued on behalf of Tai that the charge he pleaded guilty to was a conspiracy charge, which was outlawed by the Crimes Ordinance instead of the national security law. Therefore, the minimum sentence requirement in the Beijing-enacted legislation should not apply in Tai’s case, he said.
Wong suggested the court consider a three-year prison term as a starting sentence for Tai. Taking into account other mitigating factors, the ex-HKU scholar should spend two years behind bars only, the lawyer said.
“Some may say the suggestion of two years was ambitious or even audacious,” he told the court.
He later added: “I do not make these submissions lightly.”
Wong argued that the democrats’ scheme of seizing a legislative majority was not unlawful before the national security law took effect on July 1, 2020. The legislation officially came into force in the late hours of June 30 that year.
“The gravity of the offence was that they did not stop, which rendered the conspiracy unlawful,” he said.
Although Tai remained part of the conspiracy, he later withdrew while others decided to continue with the scheme. The court should only sentence him based on what he did after July 1 and not before, Wong argued.
Dressed in a white T-shirt and black blazer, Tai nodded and waved at people in the public seats with a smile on his face when he entered the dock. Au and Ng also waved at the crowd.
The five democrats were seated away from one another with around 10 corrections officers inside the dock.
Wong will continue Tai’s mitigation plea on Wednesday morning.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
Bail applications in national security cases have to go through a stricter assessment. Judges consider not only the defendant’s risk of absconding or obstructing justice, but also whether there are sufficient grounds for believing they “will not continue to commit acts endangering national security.”
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